Bautista v. Shiomoto CA1/3

Filed 6/27/13 Bautista v. Shiomoto CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

HECTOR BAUTISTA, Plaintiff and Appellant, A134621 v. JEAN SHIOMOTO, as Chief Deputy (Alameda County Director, etc., Super. Ct. No. RG11588436) Defendant and Respondent.

Hector Bautista appeals from the denial of his petition for a writ of mandate challenging the suspension of his driver’s license on the basis that his breath test results were inaccurate because he suffers from Gastroesophageal Reflux Disease (GERD). We conclude the trial court reasonably determined the evidence of the effect of GERD on breath testing was speculative, and affirm. BACKGROUND I. Arrest and Blood Alcohol Tests Bautista was pulled over at approximately 2:00 a.m. on July 17, 2010, after California Highway Patrol Officer Ty Franklin observed his car speeding and weaving between lanes. His breath smelled of alcohol, his speech was slurred, and his eyes were red and watery. Bautista admitted drinking three beers. He failed a field sobriety test and a preliminary breath alcohol test produced readings of .095 percent and .10 percent blood-alcohol.

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Bautista was arrested and transported to the Oakland CHP office, where he submitted to a breath test at 4:30 a.m. Two samples gave identical readings of .08 percent. Officer Franklin certified under penalty of perjury that he administered the breath test in compliance with the requirements of title 17 of the California Code of Regulations. II. Administrative Hearing Bautista requested an administrative hearing pursuant to Vehicle Code section 13558. Officer Franklin testified about his observations of Bautista’s driving, field sobriety, and both sets of breath tests. Officer Franklin’s arrest and investigation reports and a printout of Bautista’s breath test results were admitted. Bautista submitted medical documentation that he has suffered from GERD since 2009, including a 2009 examination report from the Manila Doctors Hospital and a medical assessment by Dr. Richard Nolan that was conducted several months after Bautista’s arrest. According to Dr. Nolan, GERD causes a “constant and continuous” state of “regurgitation . . . whether it is felt or not.” Bautista also offered expert testimony by toxicologist David Lewis. Lewis, who did not examine Bautista, testified that the regurgitation of stomach gases caused by GERD invalidated Bautista’s breath test results. Lewis acknowledged that not all scientists in the field agree with his view that GERD sufferers are incapable of producing a valid breath sample. The hearing officer found Bautista’s evidence was insufficient to rebut the results of his breath alcohol tests. The officer found Lewis’s testimony was “too speculative to support the contention and is given no weight because expert’s testimony is based on unknown factors of the respondent[‘s] actual condition and side effects of the condition at the time of the arrest. The testimony is based upon several old GERD studies and medical information taken several months after the arrest in which there was no evidence presented of respondent’s present state of medical condition at the time of his arrest. There is only an assumption that the condition was as it presented in the endoscopy photos at the time of the arrest of the respondent, however it should be again [] noted that